The Court Lays the Groundwork for Despotism

If you ever wondered whether our so-called “conservative” Supreme Court would preserve the values and ideals of our Founders and the Western Enlightenment, you now have an answer. It has demolished them systematically, one by one, in a breathtaking and sustained display of arrogance, illegal power-grabbing and failure to see cause and effect. Today’s decision on presidential immunity in Trump v. United States is the latest in its demolition derby.

Let’s review the sequence. In Citizens United v. Federal Election Commission (2010), the Court declared political contributions “speech” and thus struck down most limits on political contributions, leading to massive, legalized corruption in our politics and runaway spending on media ads, including those in social media. In Shelby County v. Holder (2013), the Court struck down Section 2 of the Voting Rights Act as no longer necessary, only to have 29 states adopt 94 voting restrictions in the next decade. In Dobbs v. Jackson Women’s Health Organization (2022), the Court reversed a half-century precedent and took back women’s abortion rights, throwing reproductive rights and the health industries that support them into turmoil nationwide. In Trump v. Anderson (2024), the Court eviscerated the Disqualification Clause (Section 3) of the Fourteenth Amendment, requiring Congress to enforce it in each instance, although over three-quarters of each House of Congress had already approved the Fourteenth Amendment in adopting it.

You would think the Court would be satisfied with having done so much damage to the nation, its institutions and its people in less than fifteen short years. (And I haven’t even mentioned guns!) But you would be wrong. Today, in Trump v. United States (2024), the Court took it upon itself to hand down a detailed test for when (and whether!) US Presidents have to obey the laws of the nation they serve.

Let me repeat that. Our Supreme Court—or rather the five male justices who subscribed to all of the majority opinion—created a complex, multi-part test for when (if ever) former presidents can be prosecuted for violating our criminal laws. The male justices did this although not a single one of them, nor the four women on the Court, had been elected to make law.

As every middle-school civics student knows, making law is the job of Congress, including adopting amendments to our Constitution for ratification by the States.

Our Constitution itself prohibits judicial lawmaking. Article III, Section 2, limits “the judicial Power of the United States” to “Cases” and “Controversies.” What this means is that our courts make decisions in cases and controversies that come before them, one by one; they don’t make law, let alone in the abstract. That simple rule is what distinguishes our legislatures, including Congress, from our courts.

Yet in Trump v. United States the Roberts Court did precisely the forbidden thing. It created, mostly out of whole cloth, a complex, multipart abstract test for deciding whether or not a former president is categorically immune from prosecution, trial and sentencing for alleged violations of our criminal law as it applies to everyone else.

The Court did this abstract lawmaking despite the fact that it admitted, repeatedly, that it did not know enough about the facts of the actual case before it to decide that case. In fact, the Court’s only administrative action, and its only proper one, was to send the case back down to the district (trial) court for that court to gather more facts and make an initial decision.

What the Roberts majority did in the meantime was to create a complex test for presidential immunity, as if it were Congress or our Founders, for the district court to apply the facts to. No one, least of all our Founders, ever intended our unelected Supreme Court to have that kind of power or to perform that sort of role.

Apart from being utterly illegal as most first-year constitutional law students understand our Constitution, Roberts’ majority opinion is a beguiling read. It evokes the words that David Brooks applied to the writings of Dubya’s White House Counsel, Harriet Miers, whom Dubya unsuccessfully nominated to the Supreme Court. Roberts majority opinion reads like “a relentless march of vapid abstractions.”

All of the vapid abstractions focus obsessively on a single idea: the need for a decisive, unfettered leader as president. There are quotes from the Founders—all relevant but none focused on the specific issue of immunity. Roberts never mentioned it, but as I read his opinion I became convinced he had become enthralled by the Federalist Society’s theory of the “Unitary Executive.”

How could we possibly survive as a nation without a strong, decisive male at the helm, unfettered by such irrelevancies as criminal law? Wouldn’t we need such a creature to tell us when and whether to take vaccines, how to fight planetary heating, when, whether and how to intervene in the catastrophe that is today’s Gaza, and whether, if push comes to shove, to hit the Kremlin with a small nuke and hope the Russians don’t respond with a species-extinguishing general nuclear attack? Wouldn’t an unfettered, strong male make these tough calls better than any so-called “experts”?

Roberts’ quote-rich majority opinion was nothing like what I had learned in law school and later taught to my own law students for some three decades. The essence of legal reasoning is analogy and distinction: accepting or rejecting former decisions based on their similarities to or differences from your case on their facts. That’s how American courts are supposed to make decisions without violating their constitutional mandate not to make law in the abstract.

Roberts did none of that, nothing even close. Although fluent and beguiling in its repetition, his opinion is a travesty of legal reasoning. It was, indeed, a relentless march of vapid abstractions, all revolving around obsessive longing for an unfettered strongman to make things right.

Justices Sotomayor and Jackson eviscerated his analysis completely. In great detail, Justice Sotomayor showed how Roberts had misapplied virtually all the decisions he had cited by failing to pay attention to their facts. In particular, he had failed to distinguish a key precedent that had decided immunity from civil suits, not criminal prosecution.

Justice Jackson, in similar detail, showed how Roberts had brutalized the key understanding of the Western Enlightenment: that no man is above the law. She showed how Roberts’ approach would abandon the Enlightenment’s core notion of personal accountability for top leaders and bury it under a mountain of complexity, indecision and delay. (In the process, of course, it would also bury our Founders’ fondest desire: never again to serve as subjects under a King.)

As for cause and effect, the consequences of the Court’s decision in Trump v. United States are obvious. First, the delay inherent in applying the Court’s multipart abstract test for immunity—in the district court, then at the intermediate appellate level and again (finally!) at the Supreme Court—will postpone any final decision until long after the upcoming election. (Maybe that was Roberts’ goal all along.) Second, and as a result, if Trump wins he will immediately claim immunity and later try to pardon himself, creating yet another year or two of confusion, controversy and delay, as Trump consolidates his power (including within our military), fires all but his lackeys, and seeks “retribution” on his political opponents.

Roberts graduated with highest distinction, in history, from Harvard University. He attended Harvard Law School, served on the Harvard Law Review, and had a successful career as an appellate attorney. It’s possible, although hardly likely, that he did all this without absorbing the most basic principles of what American courts do and don’t do and how they make decisions differently from legislatures.

But one thing is crystal clear. As Justice Oliver Wendell Holmes observed, we are all presumed to intend the natural consequences of our acts. Under that standard, if the United States descends into fascism and despotism in the coming years, and the Western Enlightenment ends ignominiously here at home, Roberts will bear the blame for failing to do what he could have done, in light of what he should have known. He will go down in history as an unreluctant handmaiden to despotism.


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